Invisible men.

Invisible men.

Invisible Men

Did Lindsey Graham and Jon Kyl mislead the Supreme Court?

It's not within the Supreme Court's power to decide the constitutional challenges brought by Salim Ahmed Hamdan, the Guantanamo detainee whose case will be argued before the court tomorrow, say Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz. In a brief they filed with the Supreme Court, they argue that Congress kicked Hamdan's current case out of court when it passed the Detainee Treatment Act last December.

The senators base their argument on the "legislative history" of the DTA—the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage. Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantanamo detainees.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat—and explicitly states that the DTA leaves Hamdan alone.

In their own brief to the court, Hamdan's lawyers said that Kyl and Graham's colloquy didn't take place on the floor of the Senate. As evidence, they cite the C-SPAN tape for the debate leading up to the Dec. 21 voice vote. Kyl and Graham don't appear. (See for yourself.) Senate officials confirm that the Graham-Kyl colloquy was inserted. When a senator wants to put a statement into the record, he or she signs it, writes "live" on it, and, with the routine consent of the rest of the body, into the record it goes.

That's not, however, what Kyl and Graham told the court. Their brief states that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live. The colloquy is even scripted to sound live. "Mr. President, I see that we are nearing the end of our allotted time," Kyl says at one point. At another, Sen. Sam Brownback, R-Kan., appears to interject a question. "If I might interrupt," he begins.

I called Brownback's office to ask if he'd given this testimony live on the Senate floor. "Yes, it was live," an aide told me. I said that I'd been told otherwise by Senate staffers and mentioned the C-SPAN tape. "Let me call you back," the aide said. She never did. Nor did Kyl or Graham's press reps.

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As a tool of judicial interpretation, legislative history is notoriously problematic. What do the statements of one member of Congress about a bill ever mean about what the rest of the pack was thinking? Justice Antonin Scalia has sworn off legislative history because such questions are so hard to answer. And judges generally prefer to stick to the text of a statute in interpreting it. But when a law isn't clearly written, the Supreme Court and the lower courts often decide they have to turn to legislative history to divine the law's meaning. There's nowhere else to look.

The DTA is not at all clear about its meaning for Hamdan and the other hundreds of habeas petitions by Guantanamo detainees that were pending in the District of Columbia courts at the time of its passage. Graham and Kyl "agreed to disagree" with Levin about the law's meaning, a Republican staffer told me. The ambiguity of the text reflects as much. Law professors have been worrying over what the DTA says since it passed.

Without the colloquy, Levin's statements that Hamdan was safe from the DTA would be the only directly relevant material in the record, and so could carry significant weight. Graham spoke repeatedly about the law in the Senate in November, a month before the law's final passage. But he didn't talk about Hamdan. Instead, he said things like the DTA "gives every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia." That's hardly as definitive as "the court should dismiss Hamdan for want of jurisdiction," as the colloquy states.

The Justice Department depends on the colloquy in its own brief to the Supreme Court. Hamdan "seeks to minimize" the disagreement about whether the law throws out his case, the government argues, "by contending that Senators Graham and Kyl made their views known only after the legislation was enacted. That is not so." To back up that claim,the government cites the colloquy, via a reference to it in an earlier government brief. The government also mentionsSen. Graham's November statements. But since none of them involve Hamdan, it's the colloquy that's doing the work. Does Kyl and Graham's card trick really prove that their interpretation is the one that held sway in Congress? Let's see if the justices wonder the same thing tomorrow.

Addendum, March 31, 1 p.m.: On Thursday, the U.S. Court of Appeals for the District of Columbia Circuit issued an unusual order rejecting the amicus briefs of Sens. Kyl and Graham (as well as Sen. Levin) in another set of Guantanamo cases. The court accepted five other amicus briefs, from organizations and groups of academics. Why don't they want to hear from the senators, who wanted to expound on the legislative history of the Detainee Treatment Act? Hmm. I wonder.